SUPERIOR COURT OF THE STATE OF CALIFORNIAFOR THE COUNTY OF LOS ANGELES

JAMES WOODS, an individual,Plaintiff,vs,JOHN DOE a/k/a "Abe List" and DOES 2through 10, inclusive,Defendants.

Case No.: BC589746

COMPLAINT FOR:(1) DEFAMATION(2) INVASION OF PRIVACY BY FALSE LIGHT

JURY TRIAL DEMANDED

Plaintiff JAMES WOODS ("Woods" or "Plaintiff") alleges as follows:

NATURE OF THE CASE

1. This action arises from the publication of a malicious and fabricated statement by a cowardly individual who hides behind the Twitter name "Abe List" ("AL") to falsely accuse and humiliate others who dare to harbor opinions different from his own. On July 15, 2015, AL stepped over the line by falsely accusing actor James Woods of being a "cocaine addict" on the social media site Twitter, a message sent to thousands of AL's followers and hundreds of thousands of Mr. Woods' followers. In fact, Woods is not now, nor has he ever been, a cocaine addict, and AL had no reason to believe otherwise. Rather, AL's outrageous claim is the culmination of a malicious on-line campaign by AL to discredit and damage Woods' reputation, a campaign which began as early as December 2014. Although AL's rantings against Woods began with childish name calling, it has clearly escalated beyond the protections of free speech, and AL must now be held to account for the millions in damages he has caused.

2. By this lawsuit, Woods intends to unmask and reveal AL for the liar he is and to recover in excess of$10 million in damages caused by AL's outrageous conduct. For over forty-five years, Woods (68) has worked tirelessly to build a career and reputation as one of the most hard-working, prolific and' recognizable actors of our time. He has also devoted significant time and money to numerous philanthropic causes. AL's reckless and malicious behavior, through the worldwide reach of the internet, has now jeopardized Woods' good name and reputation on an international scale. AL, and anyone else using social media to propagate lies and do harm, should take note. They are not impervious to the law.

THE PARTIES

3. Plaintiff James Woods is a world-renowned, award-winning, actor that has appeared in over 130 films and television series including The Onion Field, Once Upon a Time in America, Salvador, Casino, Nixon, Hercules, Shark, and White House Down. He has twice been nominated for an Academy Award, has won three Emmy Awards and a Golden Globe Award. In addition to his professional accomplishments, Woods is involved with numerous philanthropic causes including, without limitation, the America Heart Association, the Los Angeles Shelter for LGBTQ Youth and the Rhode Island Foundation (where he set up a charitable fund in Honor of his late brother Michael J. Woods). In 1997, he was honored with the Silver Circle Award for his charity work with the Venice Family Clinic, a local organization dedicated to providing quality health care to people in need. He was also the recipient of an American Heart Association Award for its Stroke Awareness Campaign.

4. Woods is informed and believes, and based thereon alleges, that the anonymous, fictitiously named John Doe a/k/a "Abe List" defendant ("John Doe" or "AL") is an individual and resident of the County of Los Angeles, State of California. In the unlikely event that AL is not a resident of Los Angeles County, AL has advanced his intentionally tortious, harmful and fraudulent schemes in the County of Los Angeles, State of California, where he has engaged in conduct to harm a California citizen.

5. Woods is ignorant of the true names and capacities of Defendants sued herein as John Doe and Does 2 through 10, inclusive, and therefore sues said Defendants by such fictitious names. Woods will amend this Complaint to allege the true names and capacities of such fictitiously named Defendants when the same have been ascertained. Woods is informed and believes, and based thereon alleges, that each of the fictitiously named Defendants is responsible in some manner for the occurrences, acts and omissions alleged herein, and that Woods' damages have been, and will be, proximately caused by their conduct. Among other things, Does 2 through 10 may be held directly liable for the defamatory posting by AL by virtue of having knowingly assisted AL in the publication of the false and defamatory statement and/or having knowingly republished the false statement without having any reason to believe in its accuracy. For convenience, each allegation regarding AL shall apply to each of the Doe Defendants 2 through 10. AL and Doe Defendants 2 through 10 are sometimes hereinafter collectively referred to as "Defendants," as the context so indicates.

6. Woods is informed and believes, and based thereon alleges, that Defendants, and each of them, were the agents, employees, partners, joint venturers, co-conspirators, owners, principals, and/or employers of the remaining Defendants, and each of them, and are, and at all times herein mentioned were, acting within the course and scope of that agency, employment, partnership, conspiracy, ownership or joint venture. Woods is further informed and believes, and based thereon alleges, that the acts and conduct alleged herein were known to, authorized and/or ratified by the officers, directors, and managing agents of Defendants, and each of them.

FIRST CAUSE OF ACTION(Defamation Against All Defendants)

7. Woods repeats, re-alleges, adopts and incorporates each and every allegation contained in paragraphs 1 through 6, inclusive, as though fully set forth herein.

8. Woods' claims arise out of and are for damages with respect to a false and defamatory statement which was initially published on or about July 15, 2015 by an unidentified anonymous person who created and who operates a Twitter account under the name "Abe List" (the "AL Twitter Account"). The owner of the AL Twitter Account has thousands of followers and, since at least December 2014, has undertaken to engage his followers with a campaign of childish name-calling targeted against Woods. In the past, AL has referred to Woods with such derogatory terms as "prick," 'joke," "ridiculous," "scum" and "clown-boy."

9. On July 15, 2015, and for the sole and intentional purpose of harming Woods, AL concocted and posted on the AL Twitter Account the outrageous, baseless, false and defamatory statement "cocaine addict James Woods still sniffing and spouting" (hereinafter, the "False Statement"). In doing so, AL intended to, and did, convey to thousands of AL's followers and others with access to the internet the false claim that Woods is addicted to cocaine, a controlled substance.

10. Woods is informed and believes, and on that basis alleges, an unidentified person operates and utilizes the AL Twitter Account which is displayed at or with the uniform resource locator ("URL") < https://mobile.twitter.com/abelisted?p=s>, and which is continually maintained and is included in and appears prominently in current Google.com and other search engine results. Indeed, a search on Google.com for "Abe List James Woods" yields the outrageous statements from the AL Twitter Account as the top two results, including one that calls Woods "a ridiculous scum clown-boy."

11. AL published, and/or caused to be published or authorized to be published, the False Statement on the AL Twitter Account and in current (as of the date of this Complaint) Google.com search engine results, causing the False Statement to be viewed thousands of times and possibly even hundreds of thousands of times. AL posted the False Statement in response to a Twitter post by Woods. Thus, the False Statement has been seen not only by Defendants' thousands of followers, but possibly by Woods' 238,512 followers on his Twitter account -- and even more since it is accessible to anyone that does a Google search. In short, the False Statement has been published for hundreds of thousands of people to see, which includes friends, family, potential employers, business associates, colleagues, and fans of Woods.

12. The above-pled misconduct by AL constitutes the tort of defamation.

13. Woods is informed and believes, and based thereon alleges, that Defendants intentionally portrayed Woods in the above manner knowing that the depiction was false, without any reasonable grounds for believing it to be true.

14. Persons who read the False Statement posted to the AL Twitter Account by Defendants and with use of Woods' name as part of the False Statement, reasonably understood the references to "@ReaIJamesWoods" and "James Woods" to be references to the actor James Woods herein.

15. The AL Twitter Account contains the False Statement of the Defendants and contains a fabricated, false, malicious and defamatory statement of fact of and concerning Woods as alleged hereinabove.

16. The AL Twitter Account, which is based on and comprised of the False Statement from Defendants, is libelous on its face and is defamation per se, because it claims that Woods has engaged in criminal conduct. As such, the False Statement clearly exposes Woods to hatred, contempt, ridicule and obloquy, and/or causes Woods to be shunned or avoided, and has a tendency to injure him in his personal life and occupation.

17. As a direct and proximate result of the aforementioned acts by Defendants, and each of them, Defendants have caused harm to Woods, which includes, but is not limited to general and special, damages in an amount not presently known but believed to be not less than Ten Million Dollars ($10,000,000), including damage to Woods' reputation and standing in the community as a result of Defendants' actions.

18. Woods is informed and believes and based thereon alleges that the aforementioned acts of Defendants were done intentionally or with a conscious disregard of Woods' rights, and with the intent to vex, injure or annoy Woods, such as to constitute oppression, fraud, or malice thus entitling Woods to exemplary and punitive damages in an amount appropriate to punish or set an example of Defendants, and each of them, and to deter such conduct in the future, which amount will be proved at trial.

SECOND CAUSE OF ACTION(Invasion of Privacy by False Light Against All Defendants)

19. Woods repeats, re-alleges, adopts and incorporates each and every allegation contained in paragraphs 1 through 18 inclusive, as though fully set forth herein.

20. The above-pled misconduct by Defendants, or any of them, constitutes the tort of invasion of privacy by false light, in that Defendants have placed Woods before the public in a false and outrageous light, which is highly offensive to Woods, and have thereby violated Woods' right of privacy.

21. As is alleged hereinabove, Defendants, and each of them, made and caused to be published the False Statement of and concerning Woods, and disseminated it to third parties around the world via the Internet. Defendants either knew that the False Statement was false, or published the False Statement with reckless disregard of the falsity of the False Statement and the false light that Woods would be placed as a result thereof. To the extent that the trier of fact finds that this False Statement is not defamatory, Woods is informed and believes and based thereon alleges that Defendants intended to depict Woods in a false, fictionalized and sensationalized light in order to benefit themselves through some cowardly form of revenge for having expressed his personal views and/or for the sole purpose of harming Woods.

22. The false light in which Defendants, and each of them, have placed Woods by virtue of the False Statement would be highly offensive to a reasonable person. By publishing and/or disseminating the False Statement on websites, including on the AL Twitter Account, and in internet search engine results published or displayed nationwide or worldwide, and by publishing the False Statement in the manner and context in which it has been published, Defendants have outrageously and without any basis whatsoever falsely represented and implied that Woods is, among other false things, a "cocaine addict."

23. Woods is embarrassed and distressed that family, friends, fans, potential employers, business associates and the general public, saw this False Statement in the manner and context in which the False Statement was published with the false representation and inference, which is alleged herein. In fact, Woods has over 238,512 people that follow his Twitter account, all of which had access to the False Statement.

24. As a direct and proximate result of said wrongful conduct by Defendants, and each of them, Woods suffered shame, mortification, hurt feelings, emotional distress, embarrassment, humiliation, and injury to his peace of mind (although not severe, disabling emotional distress), all to Woods' general damage in an amount not presently known but believed to be not less than Ten Million Dollars ($10,000,000), including damage to Woods' reputation and standing in the community as a result of Defendants' actions. When Woods ascertains the exact amount of said damages, he will seek leave of Court to amend this Complaint to set forth said amount.

25. As a further direct and proximate result of said wrongful conduct by Defendants, and each of them, Woods has suffered general and special damages including, but not limited to, damage to his business, profession, reputation, character and property, which will most likely result in loss of employment, loss or reduction in earnings and profits in an amount which has yet to be ascertained, and will result in Woods not been given certain jobs. When Woods ascertains the exact amount of said damages, he will seek leave of Court to amend this Complaint to set forth said amount.

26. Woods is informed and believes, and based thereon alleges, that the aforementioned acts of Defendants, and each of them, were done intentionally or with a conscious disregard of Wood's' rights, and with the intent to vex, injure or annoy Woods, such as to constitute oppression, fraud, or malice, and that they had knowledge of, or acted in reckless disregard of the rights of Woods, and the false light in which Woods would be placed, thus entitling Woods to exemplary and punitive damages in an amount appropriate to punish or set an example of Defendants, and each of them, and to deter such conduct in the future, which amount will be proved at trial.

I. General and special damages against Defendants, and each of them, jointly and severally, in an amount not less than Ten Million Dollars ($10,000,000), or according to proof, together with interest thereon at the legal rate;

2. Exemplary and punitive damages in an amount sufficient to punish and deter Defendants, the exact sum in an amount to be determined as appropriate to the Court;

AS TO THE SECOND CAUSE OF ACTION:

3. General arid special damages against Defendants, and each of them, jointly and severally, in an amount not less than Ten Million Dollars ($10,000,000), or according to proof, together with interest thereon at the legal rate;

4. Exemplary and punitive damages in an amount sufficient to punish and deter Defendants, the exact sum in an amount to be determined as appropriate to the Court;

AS TO ALL CAUSES OF ACTION:

17. For costs of the suit incurred;

18. For attorneys' fees, if allowed by law;

19. For pre-judgment interest on all such damages at the legal rate; and

20. For such other and further relief as the Court may deem just and proper.

The Court had issued a tentative order but after oral arguments, took the matter under submission.

After reconsidering the parties' pleadings and arguments, the Court now rules:

The Court affirms its ruling that defendant has met his burden in the 1st Prong. However, it reverses its Order as to the 2nd Prong. The Court finds that plaintiff has met his burden of showing a probability of prevailing.

As contended by plaintiff: Applying the totality of circumstances test, and examining the plain language of the Tweet, it is clear that any reader of the AL False Statement could and indeed must view it as a statement of fact. As described by Professor Finegan, AL's use of a prenomial characterization (i.e. "cocaine addict") followed by a proper noun (i.e., "James Woods") is a well-established linguistic structure widely used to characterize people with shorthand/actual information. Prof. Finegan's opinion that "many if not all readers of the 'cocaine addict' Tweet will understand and interpret Abe List to be making a factual claim about James Woods -- namely that he is a cocaine addict' is on an issue of fact. His opinion is sufficiently beyond common experience and assists the trier of fact.

Defendant's objections are overruled.

Therefore, defendant's Special Motion to Strike (CCP 425.15) is DENIED.

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.

Twitter tells the politically-outspoken actor that calling him a "cocaine addict" appears to be hyperbole.

On Friday, an attorney for James Woods was in court in an attempt to push Twitter to produce records in connection with the anonymous user who suggested the actor was a "cocaine addict."

Woods is suing the individual tweeting as "Abe List" for $10 million. The defamation lawsuit aims to send the message to the defendant and "anyone else using social media to propagate lies."

After the lawsuit was filed late last month, Woods' attorneys followed up with a subpoena to Twitter in order to unmask "Abe List" as well as a second individual under the Twitter name "T.G. Emerson," who accused Woods of being a "notorious coke fiend and registered sex offender." What Woods might not have expected was the scorching response that would came back from the social media service, which has hired outside counsel to deal with this case.

In a letter dated August 21, Twitter's attorney Ryan Mrazik faulted Woods' lawyers Michael Weinsten and Evan Spiegel with not providing proper documentation, conducting unauthorized early discovery and making "vague, overbroad, and unduly burdensome" demands. The biggest objection, though, was reserved for a potential abuse upon the First Amendment.

"The speech at issue appears to be opinion and hyperbole rather than a statement of fact," wrote Mrazik. "Further, the target of the speech is a public figure who purposefully injects himself into public controversies, and there has been no showing of actual malice. Attempts to unmask anonymous online speakers in the absence of a prima facie defamation claim are improper and would chill the First Amendment rights of speakers who use Twitter's platform to express their thoughts and ideas instantly and publicly, without barriers."

Woods' lawyers believe they do have a prima facie case of defamation.

In a brief filed today they write: "The offensive Twitter postings were not in any way couched as opinion, joke or hyperbole. Nor were they qualified in any way whatsoever."

"Abe List" has hired his own attorney, Kenneth White at Brown White & Osborn, to defend the matter. The attorney is familiar to many as the caustic former federal prosecutor who tweets as "Popehat" and who blogged about the case after THR first reported it.

White was in LA Superior Court today as well and has filed his own opposition to early discovery in the case.

"Plaintiff James Woods is abusing the court system to lash out at a constitutionally protected political insult — the very sort of insult he routinely uses himself," opens the brief (read here. Twitter's letter attached as exhibit.)

With nods to Woods' own postings ("Put down your crack pipe," Woods once tweeted to a follower; "I wouldn't want you to spend your precious crack allowance being enlightened," the actor wrote to another), White calls out the plaintiff for "routinely" employing insults like "clown" and "scum."

"But Plaintiff apparently believes that while he can say that sort of thing to others, others cannot say it to him," White adds.

The brief goes on to argue that Twitter is a platform known for hyperbole, and that Woods himself is "a well-known part of Twitter's culture of political hyperbole." He cites a Daily Beast story that called him "Obama's biggest Twitter troll" and writes that "perhaps because he's so consistently combative, or perhaps because he's played the role of drug users in his movie career, 'James Woods is on cocaine' has become a Twitter in-joke or meme."

In Woods' own legal papers today (read here), references to other tweets are called a red herring.

"First, there is no reason any of Mr. Woods' followers, all of whom were exposed to the defamatory statements, would even bother to investigate the speakers and/or their Twitter sites to determine if they were reliable sources," writes Weinsten. "As to Mr. Woods, we are not aware of any false statements of fact made by Mr. Woods[,] and his sometimes sharp commentary on political matters is irrelevant to the allegations here."

The judge has yet to rule and instead has scheduled an Oct. 2 hearing to discuss the matter further.

In the meantime, White says he will be filing an anti-SLAPP motion. As such, the judge will first analyze whether the lawsuit targets free speech on a matter of public concern. If so, Woods would have to demonstrate a likelihood of prevailing in the lawsuit before the case moves any further. To do this, he'll have to rebut the argument that the tweets are non-actionable hyperbole and opinion as well as show there's reason to believe these tweets were published with actual malice (knowledge of falsity or reckless disregard for the truth). If Woods can't do that, he could end up paying "Popehat" legal fees.

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.

There was an episode of the 1990s sitcom Murphy Brown in which Murphy, played by Candace Bergen, appeared on kid's TV show to soften her image. The show features Muppets; it's a transparent stand-in for Sesame Street. Murphy, true to type, loses her temper and punches one of the Muppets, eventually ripping its head from its felt shoulders.

It's rarely productive to punch the Muppet.

Somebody should have reminded James Woods. He's just wound up and thrown a haymaker at a Muppet, suing some anonymous troll on Twitter for suggesting that he's a "cocaine addict." Woods filed a complaint in L.A. County Superior Court claiming $10 million in damages for defamation and false light invasion of privacy. He's represented by Lavely & Singer, as people like him tend to be in making errors of judgment like this.

Woods probably has plenty of money, and can afford to waste it on this sort of enterprise. That means that he won't be ruined if the semi-anonymous Twitter user hits him with an anti-SLAPP motion and wins attorney fees — which could easily be in the mid to high six figures.

Why do I think that Twitter troll "@abelisted" (now deleted) can win an anti-SLAPP motion in defense of this suit? Because he's a Twitter troll, and reasonable people would take his tweets as abuse, hyperbole, and satire, not as a statement of fact. Therefore they can't be defamatory.

Only provable statements of fact can be defamatory. Insults, abuse, hyperbole, overheated rhetoric, satire, irony, and the like cannot be. Whether a particular statement is one of fact or opinion is generally a legal question for the judge, not a question for the jury. Moreover, the judge must evaluate whether the statement is one of fact or opinion based on the context in which the statement was made. "The contextual analysis requires that courts examine the nature and full content of the particular communication, as well as the knowledge and understanding of the audience targeted by the publication." Bently Reserve L.P. v. Papaliolios, 218 Cal. App. 4th 418, 427 (2013). Increasingly, California courts have recognized that online rhetoric is more likely to be interpreted by its audience as cathartic trash-talk, not a factual assertion. This is especially true when it occurs someplace particularly known for overheated rhetoric, like a gripe forum. Furthermore, California courts have recognized that anonymity and semi-anonymity increase the audience perception that statements are rhetorical rather than factual.

Anyone familiar with Twitter knows it to be overrun with trolls, malcontents, comical and satirical characters, and deranged stone-throwers. Every indication is that "@abelisted" falls into this category. In fact, Woods' own complaint does an excellent job of setting up the argument that @abelisted is engaged in hyperbolic insult, not factual assertion:

The owner of the AL Twitter Account has thousands of followers and, since at least December 2014, has undertaken to engage his followers with a campaign of childish name-calling targeted against Woods. In the past, AL has referred to Woods with such derogatory terms as "prick," "joke," "ridiculous" "scum" and "clown-boy."

So, Woods concedes that exaggerated insults by a Twitter troll are the context for the troll eventually saying "cocaine addict James Woods still sniffing and spouting."

Woods compounds this impression by emphasizing and griping about non-factual statements clearly protected by the First Amendment:

Indeed, a search on Google.com for "Abe List James Woods" yields the outrageous statements from the AL Twitter Account as the top two results, including one that calls Woods "a ridiculous scum clown-boy."

Moreover, @abelisted's profile — now deleted, but available through Google cache — explicitly suggests that his tweets are not all to be taken seriously:

Moreover, @abelisted's tweets show him to be a rather banal critic of conservative figures, quick to insult and criticize them. He probably targets James Woods because Woods is an outspoken conservative, something that tends to agitate narrow-minded folks who are used to entertainment figures being outspoken liberals.

In short: the context of @abelist's tweets, especially as emphasized by Woods himself, overwhelmingly suggest that any reasonable reader familiar with that context would take the "cocaine" tweet as part of a pattern of hyperbolic abuse by a trollish partisan, not as a factual assertion meant to be taken at face value. I won't say that Woods' complaint is frivolous or sanctionable, but @abelisted definitely has a very strong anti-SLAPP motion available to him, and Woods could easily wind up paying his attorney fees.

@abelist is a punk, but you get to be a punk in America without being held financially liable for it.

Either James Woods got shitty advice, or James Woods' attorneys failed to convince him to act sensibly. The Streisand Effect has already begun; four to five orders of magnitude more people will hear about @abelisted's stupid tweet than would have without this lawsuit. What's the point?

Don't punch the Muppet, James Woods.

Edited August 28 to add: "John Doe", who runs the @abelisted account, has retained me to represent him in Mr. Woods' suit. I will not be discussing the matter here during the litigation, at least until we have a ruling on an anti-SLAPP motion. As always, my law firm does not control, approve, or endorse anything I write on Popehat; it's a purely personal project.

James Woods vs. John Doe: Reply in Support of Motion for An Order Compelling Non-Party Kenneth P. White to Answer Deposition Questions and Produce Documents; and an Order for Sanctions Against Non-Party Kenneth P. White in the Amount of $9,040.55by James WoodsDecember 21, 2016

SUPERIOR COURT OF THE STATE OF CALIFORNIAIN AND FOR THE COUNTY OF LOS ANGELES

JAMES WOODS, an individual,Plaintiff,vs.JOHN DOE a/k/a "Abe List" and DOES 2through 10, inclusive,Defendants.

Case No.: BC 589746

[Hon. Mel Recana, Dept. 45]

REPLY IN SUPPORT OF MOTION FOR: (1) AN ORDER COMPELLING NON-PARTY KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE DOCUMENTS; AND (2) AN ORDER FOR SANCTIONS AGAINST NON-PARTY KENNETH P. WHITE IN THE AMOUNT OF $9,040.55

Date: January 3, 2017Time: 8:35 a.m.Dept: 45

Reservation ID: 161109172908

Complaint Filed: July 29, 2015Trial Date: None

I. INTRODUCTION

At the outset, White's [1] Opposition to Woods' Motion not only lacks merit under California law, but actually demonstrates precisely why White must be ordered to disclose the information at issue concerning the identity of his client, AL. Most significantly, White actually admits in his Opposition that the reason he seeks to protect AL's identity is because "[r]evealing his identity would subject [AL] to civil liability by revealing that he was the one who posted the tweet that [Woods] sued over." See Opposition at 8: 1 7-19. In other words, White is taking the position that AL should be allowed to remain anonymous in order to avoid liability for Woods' claims in this action - claims that this Court has already acknowledged (in denying AL's anti-SLAPP motion) have a likelihood of success. Obviously, a party to a lawsuit cannot remain anonymous simply to avoid liability in that lawsuit. [2] If such was the case, then potential defamers would be encouraged and granted free license to make malicious and defamatory statements under the guise of anonymity, knowing that litigation against them would be an illusory and ineffective exercise. By taking such an outrageous and absurd position in support of withholding AL's identity, White has demonstrated the true impropriety of his intent here -- an impropriety that taints the credibility of White's entire Opposition.

The impropriety of White's intent is further evidenced by his deceptive attempt to mischaracterize the record in this case -- including with respect to alleged "harassment" by Woods. For example, while White boldly accuses Woods' counsel of a purported intent to publicly release his deposition video (Opposition at 6:6-10), he provides no evidence to support this accusation. To the contrary, White's own cited deposition excerpts merely reflect that Woods' counsel was not prepared to agree at his deposition to a confidentiality stipulation, but was open to discussing the issue further, including through the entry of a protective order. See Depo at 45:1-46:3. Similarly, despite White's incendiary contention that Woods' "aim" is to harass AL's relatives (Opposition at 2:16-20), he provides no evidence whatsoever to suggest that Woods ever expressed any animus towards those relatives. Moreover, while White spends significant portions of his Opposition attempting to portray Woods as the aggressor in this case, the simple fact remains that White's own client, AL, was the party who initiated this dispute by posting a series of malicious tweets about Woods on Twitter -- referring to Woods on as a "joke," a "clown-boy," "ridiculous," and "scum" -- culminating in AL's false and defamatory statement that Woods was a "cocaine addict." [3] White's deceptive tactics should not be countenanced by the Court.

It further bears noting that, despite premising his entire Opposition on the notion that AL is deceased, White has still failed to set forth any admissible evidence actually supporting this "fact." Without such evidence, how is Woods (or the Court, for that matter) to even know that AL has not lied about his own death - especially given AL's documented propensity for lying? Indeed, White himself admits in his declaration that "most of the information" in AL's twitter profile was completely ''fictional.'' See White Declaration, Para 5. Moreover, White previously admitted in his deposition that he never even saw AL's alleged death certificate. See Depo at 16:13-15 ("I have not reviewed a death certificate of Abe List."). In light of such admissions by White, it is all the more critical that Woods obtain proof of AL's identity.

As set forth in detail below, White has effectively conceded in his Opposition (including through his own cited cases) that neither the attorney client privilege nor the right of privacy allows him to withhold the critically relevant identifying information about AL that Woods seeks. Indeed, even if the attorney-client privilege did apply, it would have been waived long ago by AL when he authorized White to disclose a significant part of his communications concerning his identity. Moreover, to the extent that White claims Woods intends to harass AL's relatives, White has failed to provide any evidence supporting this claim (and the evidence that he does provide actually cuts against any notion of harassment).

Accordingly, in the absence of any cognizable counter-arguments by White, there is no reason why the Court should not compel White to answer the deposition questions set forth in Woods' Separate Statement, as well as produce the documents responsive to Woods' Subpoena. Moreover, based on the untenable and outlandish positions taken by White in his Opposition (which plainly show that White did not act with "substantial justification" in refusing to answer the discovery at issue), there is no reason why the Court should not award monetary sanctions against White and in favor of Woods in the sum of $9,040.55.

II. WHITE HAS EFFECTIVELY ADMITTED THAT AL'S IDENTIFYING INFORMATION IS NOT PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE.

In his Motion, Woods clearly demonstrated that the facts concerning AL's identity (such as AL's name, age, and the identity of his personal representative) are not and cannot be attorney-client privileged. Indeed, not only are these facts, not communications, but there is nothing confidential about them (given that AL's identity is known by many people outside the scope of any attorney-client relationship).

In his Opposition, White effectively admits that AL's identifying information does not fall within the purview of the attorney-client privilege. Most notably, while White primarily cites to and discusses the Willis v. Superior Court case, that case actually held that the names of the attorney's clients at issue were discoverable because (as is the case here) such information was "directly relevant to the issues in dispute." 112 Cal.App.3d 277,294 (1980). The parties in that case (both attorneys) were each claiming that they had stolen one another's clients, and thus the court found that the identification of those clients was a necessary component of proving the claims. Here, similarly, AL' s identity is critical and relevant to Woods' ability to investigate and gather information to prosecute his claims against AL. Indeed, in light of the fact that White has refused to provide any evidence corroborating his claim that AL is deceased, the disclosure of AL's identity is necessary in order for Woods to confirm whether AL actually died. Thus, the Willis case -- White's primary authority in on the issue of attorney-client privilege -- actually supports Woods' position.

Moreover, to the extent that White attempts to avail himself of the extremely limited exceptions to the general rule that client identities are not privileged, his argument is, quite frankly, absurd. In particular, the thrust of White's argument on this point is that he should be allowed to withhold AL's identity simply because "revealing [AL's] identity would subject [AL] to civil liability by revealing that he was the one who posted the tweet that Mr. Woods sued over." See Opposition at 8:17-19. In other words, White is taking the outlandish position that he cannot reveal AL's name because the reveal would allow Woods to hold AL liable for the conduct alleged in Woods' complaint. Of course, if this was the law, then potential defamers would be encouraged and granted free license to make malicious and defamatory statements under the guise of anonymity, knowing that litigation against them would be an illusory exercise. Such a result would obviously run counter to both law and common sense. Indeed, it bears noting that none of White's cited authorities support his supposed position -- nor is Woods aware of even a single case where a court allowed an attorney of a party in litigation to withhold the identity of his client on privilege grounds. Rather, a client's identity may only be withheld in the limited circumstances where the disclosure would subject the client to harm separate and apart from any liability for the claims at issue in a pending lawsuit. See, e.g., Baird v. Koerner, 279 F.2d 623, 630 (1960) (disclosing the names of an attorney's clients -- who were not parties to the litigation -- would subject those clients to liability for unpaid taxes).

Notably, while White cites to the Mitchell v. Superior Court case in order to argue that the "facts" concerning AL's identity are in and of themselves privileged on account of being relayed to White during an attorney-client conversation, Mitchell does not stand for such a misguided proposition. Rather, Mitchell merely held that certain facts provided by an attorney to his client were considered privileged because they comprised the very legal advice that was provided by the attorney. See Mitchell, 37 Cal. 3d 591, 589-601 (1984). Here, in stark contrast, the identifying information at issue would have been provided by AL to White (not vice versa as was the case in Mitchell), and therefore could not constitute legal advice in and of itself. In other words, Mitchell is completely inapposite here.

In any event, even assuming that the facts concerning AL' s identifying information were initially privileged, that privilege was waived by AL when he authorized White to disclose "personal information about him" to Woods, including the material facts that: (1) "most of the information in the profile of his Twitter account [was] fictional," (2) he "was not married," (3) he "did not own a house in Los Angeles," (4) he "was not employed at the time the lawsuit was filed," (5) he "did not work in finance or math and was not a partner in private equity," and (6) he "did not have assets to satisfy Mr. Woods even if Mr. Woods won [this case]" See Opposition at 13:23-14:13; White Declaration, para. 5. AL's personal representative similarly waived the attorney-client privilege by authorizing White to disclose the material facts that: (1) "the estate would no longer defend the case," (2) "the estate lacked assets sufficient to satisfy any significant judgment," and (3) "that several of Mr. Woods' beliefs about [AL] (for instance, the belief he was married) were untrue and based on a fictional Twitter profile." White Declaration, para. 7. As a matter of law (and fairness), AL (and/or his personal representative) simply cannot turn the attorney-client privilege on and off to suit his particular needs. Rather, California law is clear that a party cannot disclose only those privileged facts beneficial to its case (in this instance, the facts that would support AL's purported inability to satisfy a judgment) and refuse to disclose, on the grounds of privilege, related facts detrimental to his position (in this instance, those facts that would allow Woods to obtain and collect a judgment against AL). See Merritt v. Superior Court, 9 Cal. App. 3d 721, 731 (1970) (when the privilege holder's "conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.") (citing to Wigmore on Evidence, McNaughton Revision, Volume VIII, section 2327); Kerns Construction Co. v. Superior Court, 266 Cal. App. 2d 405,414 (1968) (same). Fundamental to this analysis is the notion that a party should not be able to simply pick and choose which privilege communications it will disclose and which it will not. "He may elect to withhold or to disclose, but after a certain point his election must remain final." Merritt, supra, 9 Cal.App.3d at 731; see also Handgards, Inc. v. Johnson & Johnson, 413 F. Supp. 926, 929 (N.D. Cal. 1976) ("An important consideration in assessing the issue of waiver is fairness. Thus, a party may not insist on the protection of the attorney-client privilege for damaging communications while disclosing other selected communications because they are self-serving. Voluntary disclosure of part of a privileged communication is a waiver as to the remainder of the privileged communication about the same subject."); Weil v. Investment Indicators, 647 F. 2d 18, 24 (9th Cir. 1981) ("[I]t has been widely held that voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege as to all other such communications on the same subject."). In this case, by voluntarily allowing White to disclose a "significant part" of the communications concerning his identity, AL waived the privilege with respect to those communications. Cal. Evid. Code § 912 (a).

Finally, to the extent that White attempts to fault Woods for purportedly failing to ""exhaust[] other methods of discovering [AL's] identity," this argument is self-defeating in light of White's own admission that he opposed Woods' attempt to subpoena Twitter. See Opposition at 3:13-15, 8:27-28. Indeed, one of the very reasons that Twitter has refused to comply with the Subpoena is because of White's objection thereto. [4] As a matter of fairness, White cannot on the one hand oppose Woods' attempt to discover AL' s identity from third parties, and then on the other hand fault Woods for failing to obtain such third party discovery.

In sum, because White has failed to set forth any law or facts indicating that AL' s identifying information is within the scope of the attorney-client privilege, and because that privilege would have been waived in any event by AL, White has conceded Woods' point that the attorney-client privilege does prevent disclosure of the fundamental facts concerning AL' s identification.

III. WHITE HAS FURTHER CONCEDED THAT AL'S IDENTIFYING INFORMATION IS NOT PRIVATE INFORMATION.

As set forth in Woods' Motion, because the right of privacy does not survive death, and because White contends that AL is deceased, then (by White's own admission) AL no longer has any right to privacy. See Lugosi v. Universal Pictures, 25 Ca1.3d 813, 820, 833 (1979); Hendrickson v. California Newspapers, Inc., 48 Cal.App.3d 59, 62 (1975); Flynn v. Higham, 149 Cal.App.3d 677 (1983). Moreover, because of the public interest in an open court system, including the public's right to know the identity of parties to a lawsuit, AL never even had the right to proceed anonymously in the first place. See Doe v. Kamehameha Schools etc., 596 F.3d 1036, 1042-43 (9th Cir. 2010); United States v. Doe, 655 F .2d 920, 922 (9th Cir. 1980). Thus, to the extent White objected to the disclosure of information concerning AL's identity on privacy grounds, such objections have no merit.

White does not effectively dispute this notion in his Opposition. To the contrary, he actually admits that the Court (in denying AL's anti-SLAPP motion) already "rejected" his privacy argument as it pertains to AL. Opposition at 11: 15-17.

Moreover, while White attempts to dispute that AL's right to privacy died with him, his only cited authorities are wholly inapposite and have no bearing whatsoever on the facts at bar. Opposition at 11-12. Indeed, White's reliance on McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) is actually deceptive, as the use of the term "anonymous" in that case had nothing to do with the plaintiffs identity as a litigant. To the contrary, the plaintiffs name, Margaret McIntyre, was disclosed from the inception of the case, and there was no argument that she was entitled to keep her identity as a litigant private. The only issue was whether she had the right, in the context of purely political speech, to distribute unsigned (i. e. "anonymous") political leaflets at school district meetings.

White's other cited authorities are similarly unsupportive of his position. For example, the court in Powell v. U.S. Dep't of Justice, 584 F. Supp. 1508, 1528 (N.D. Cal. 1984) actually found that the names of the deceased individuals should be disclosed. And the cases of National Archives & Records Administration v. Favish, 541 U.S. 157, 171 (2004) and Catsouras v. Dep't of California Highway Patrol, 181 Cal. App. 4th 856, 870 (2010) dealt with the completely distinguishable issue of whether family members have the right to prevent the disclosure of graphic photographs of their relative's death. Nevertheless, the court in Catsouras acknowledged that the right to privacy dies with an individual (but made a special exception in the limited and fact specific context of death photographs). Of course, Woods is not seeking to publish photos of AL's dead body.

Simply stated, and as evidenced by White's own admission and cited authorities, White cannot in good faith claim that the identity of AL is protected by the right of privacy. Thus, White has conceded Woods' point on this issue.

IV. WHITE HAS FAILED TO SHOW ANY COGNIZABLE HARASSMENT BY WOODS THAT WOULD MERIT THE WITHOLDING OF AL'S CRITICAL IDENTIFYING INFORMATION.

Regarding the issue of alleged harassment by Woods, White's entire argument effectively boils down to the misguided notion that simply because Woods rejected White's purported offer to "disclose AL' s identity in settlement discussions if Mr. Woods would agree to keep it confidential," and simply because Woods has made some strongly-worded tweets about AL, Woods must necessarily be seeking to harass AL and/or AL's relatives. See Opposition at 10:18-24. Like White's other arguments, this argument lacks merit and is actually nonsensical in the context of this case.

First and foremost, with respect to White's purported settlement offer, any offer to disclose AL's identity on a purely confidential basis and in exchange for a mutual release of claims (which is all that White offered to do) would be completely illusory in the context of this action. More specifically, the very reason that Woods needs AL's identifying information is so he can effectively prosecute his claims against AL. Thus, the mere receipt by Woods of AL's identifying information, without the ability to actually use that information to pursue this case, would be completely pointless. [5] As such, Woods cannot be faulted for declining to accept this offer, and his refusal is in no way indicative of an intent to harass.

Moreover, to the extent that White is pointing to certain of Woods' strongly-worded tweets as evidence of Woods' intent to harass, this argument actually cuts against White insofar as AL is the party whose vitriolic and harassing tweets gave rise to this action in the first place. As set forth in Woods' Complaint, AL previously engaged his thousands of Twitter followers with a campaign of harassing and angry tweets directed towards Woods, calling Woods such derogatory names as "prick," "joke," "ridiculous," "scum" and "clown-boy." See Complaint, para. 8. Indeed, evidence of AL' s malicious and harassing tweets was already placed before the Court in support of Woods' successful opposition to AL's anti-SLAPP motion. Accordingly, if Woods responded to AL's harassment by using strong language, such conduct was purely defensive and justified by AL' s defamation. Stated otherwise, Woods' tweets do not evidence any "harassment" that would allow White to withhold AL' s identity.

Finally, White has provided no evidence whatsoever to suggest that Woods intends to harass AL' s relatives, or that Woods intends to use the information at issue for any other purpose than to prosecute his claims in this lawsuit. Thus, his arguments in this respect are completely unsubstantiated.

V. CONCLUSION

For all the reasons set forth above and in Woods' Motion and Separate Statement, Woods respectfully requests that the Court issue an Order directing White to appear and answer the questions set forth in Woods' Separate Statement and to produce all documents specified in the Subpoena at 10:00 a.m. on January 5, 2017. Woods also respectfully requests that the Court award monetary sanctions against White and in favor of Woods in the sum of $9,040.55.

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 2049 Century Park East, Suite 2400, Los Angeles, California 90067-2906.

On the date indicated below, I served the foregoing document described as:

REPLY IN SUPPORT OF MOTION FOR: (1) AN ORDER COMPELLING NONPARTY KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE DOCUMENTS; AND (2) AN ORDER FOR SANCTIONS AGAINST NONPARTY KENNETH P. WHITE IN THE AMOUNT OF $9,040.55

on the interested parties in this action by placing [ ] the original document OR [X] a true and correct copy thereof enclosed in sealed envelopes addressed as follows:

[X] BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

[] BY PERSONAL SERVICE:

[] I caused such envelope to be delivered by a messenger employed by Express Network.

[ ] I delivered said envelope(s) to the offices of the addressee(s), via hand delivery.

[ ] BY ELECTRONIC SERVICE: I transmitted the foregoing document by electronic mail to the email addresses) stated on the service list per agreement in accordance with Code of Civil Procedures section 1010.6.

I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Executed December 21, 2016, at Los Angeles, California.

N. Echesabal

_______________

Notes:

1 Unless otherwise indicated, capitalized terms used herein have the same definitions as in Woods Motion.

2 Indeed, Woods is not aware of a single case where a court has allowed an attorney of a party to a lawsuit to withhold the identity of his client on privilege grounds, nor has White cited any such case in his Opposition.

4 Based on White's own admission that "most of the information" in AL's twitter profile was completely "fictional," it is not even clear whether Twitter would have AL's actual identifying information. See White Declaration, para. 5.

5 For example, even assuming arguendo that Woods accepted White's offer, and White then disclosed AL's name, how would Woods know that White was telling the truth? Because Woods would have had to release his claims, he would be prevented from taking any discovery to verify whether White's information was in fact accurate. Such an outcome would be completely backwards and absurd.

We represent nonparty Twitter, Inc. ("Twitter") and write in response to your subpoena of August 4, 2015, seeking user identifying information and records, including the IP address, for a Twitter user account. For the reasons stated below, Twitter objects to your request. Please contact me directly to meet and confer if you disagree with any of our objections.

First, Twitter objects because you have provided no documentation showing that the Court considered and imposed the First Amendment safeguards required before a litigant may be permitted to unmask the identity of an anonymous speaker. As courts have recognized, a trial court must strike a balance "between the well-established First Amendment right to speak anonymously, and the right of the plaintiff to protects its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the anonymous, fictitiously-named defendants." Dendrite Int'l, Inc. v. Doe No. 3,775 A.2d 756, 760 (N.J. Super. A.D. 2001). Accordingly, before a service provider such as Twitter may be compelled to unmask an anonymous speaker, (1) a reasonable attempt to notify the user of the request and the lawsuit must be made, and (2) the plaintiff must make a prima facie showing of the elements of defamation. See Krinsky v. Doe, 72 Cal. Rptr. 3d 231, 239, 244-46 (Cal. Ct. App. 2008). Moreover, under California law, the party seeking discovery must demonstrate "a compelling need for discovery" that "outweigh[s] the privacy right when these two competing interests are carefully balanced." Digital Music News LLC v. Superior court of Los Angeles, 226 Cal. App. 4th 216, 229 (2014) (citing Lantz v. Superior court, 28 Cal. App. 4th 1839, 1853-54 (1994).

It does not appear that you will be able to meet these standards. The speech at issue appears to be opinion and hyperbole rather than a statement of fact. Further, the target of the speech is a public figure who purposefully injects himself into public controversies, and there has been no showing of actual malice. Attempts to unmask anonymous online speakers in the absence of a prima facie defamation claim are improper and would chill the First Amendment rights of speakers who use Twitter's platform to express their thoughts and ideas instantly and publicly, without barriers.

Twitter next objects because the subpoena appears to constitute unauthorized early discovery under California law. CAL. CODE CIV. P. Section 2025.210(b). A defendant has not been served or appeared and it does not appear from the docket that the Court otherwise authorized early discovery. Please provide us with the rule or order that authorized issuance of the subpoena.

Further, all discovery requests must be calculated to lead to discovery of relevant and admissible evidence. CAL CODE CIV. P. Section 2017.010. Twitter therefore objects, for example, to your request for "[a]ny user records" and "all handle ... and associated user names ... used or otherwise associated at any time with the AbeListed Twitter Acct and/or its user(s)" as overly broad because it is unlimited in scope, and/or not related to an alleged injury or claim for recovery. See, e.g., Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388-89 (E.D. Mich. 2012) (denying request for content of online account and emphasizing that a litigant "does not have a generalized right to rummage at will through information that [another party] has limited from public view").

Twitter also objects to the subpoena because it is vague, overbroad, and unduly burdensome. For example, Twitter objects to the subpoena's requests for "[a]ny user records" or records "associated" with an account from "any time prior to the date of this request."

Finally, Twitter objects because your subpoena demands deposition testimony more than 75 miles from San Francisco or beyond the jurisdiction of the issuing court. See CAL CODE CIV. P. Section 2025.250(c)("[T]he deposition of [a non-party] shall be taken within 75 miles of the organization's principal executive or business office in California."); see also id. Section 2029.400 (Foreign subpoenas under the Interstate and International Depositions and Discovery Act must be personally served under the rules governing service of subpoenas in California actions.).

Twitter has provided notice to the email address associated with the Twitter account identified in your subpoena. Twitter understand that the user intends to challenge the subpoena and that Mr. Kenneth White of Brown, White & Osborn, LLP, will be contacting you soon. Twitter will take no further action until the user's objections are resolved by the Court. Even then, however, Twitter's objections would need to be addressed before Twitter produces any responsive records.

Please feel free to contact me if you would like to further discuss these objections. Twitter otherwise preserves and does not waive any other available objections or rights.

DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS on Custodian of Records for TWITTER, INC.

I. Relevant Background and Reason for Information Request From Twitter:

On July 29, 2015, Plaintiff James Woods ("Woods") filed the above-entitled lawsuit which arose from the publication of a malicious and fabricated statement by an individual who hides behind the Twitter name "Abe List" and handle/user "@abelisted" ("AbeListed"). On July 15, 2015, AbeListed falsely accused actor James Woods of being a "cocaine addict" on the social media site Twitter, a message sent to thousands of AbeListed's followers and hundreds of thousands of Mr. Woods' followers. Woods is not now, nor has he ever been, a cocaine addict, and AbeListed had no reason to believe otherwise. AbeListed's reckless and malicious behavior, through the worldwide reach of the Internet, has now jeapardized Woods' good name and reputation on an international scale. The documents sought pursuant to this Subpoena are relevant and material to the trial of this case because Woods needs the documents in order to identify and prosecute his defamation and invasion of privacy claims against AbeListed.

II. The records to be produced pursuant to the Subpoena and this Attachment 3 are with reference to the following Twitter account and user profile ID:

1. twitter.com/abelisted2. @abelisted3. mobile.twitter.com/abelisted

Collectively referred to herein as the "AbeListed Twitter Acct."

III. The records to be produced pursuant to Subpoena and this Attachment "3" are as follows:

1. Account user information for the AbeListed Twitter Acct, including any documents or writings (the term "writings" in this request, and each subsequent request using the term, means as defined by California Evidence Code Section 250) evidencing the name, address, telephone number, e-mail address(es), IP address(es) and/or any other available contact and/or identifying information for the holder(s) of the AbeListed Twitter Acct, and/or associated with the AbeListed Twitter Acct, both concurrently and at any time prior to the date of this request.

2. Any user records, data and writings (or a copy of the information contained therein) which evidence and identify each IP address (including date and time of use of said IP address) associated with and/or used at any time by any person in relation to creating or modifying or posting to the AbeListed Twitter Acct.

3. Any user records, data and writings (or a copy of the information contained therein) which evidence and identify the IP address (including date and time of use of said IP address) used by the user who posted the Tweet/Comment "@RealJamesWoods @banshapiro cocaine addict James Woods still sniffing and spouting," dated July 15, 2015 7:40 AM, at URL http://twitter.com/abelisted/status/621328418861248512

4. A list of all handle (i.e., @names) and associated user names, in addition to the AbeListed handle, used or otherwise associated at any time with the AbeListed Twitter Acct and/or its user(s).

How James Woods Became Obama’s Biggest Twitter Troll. Actor James Woods has had a long career in Hollywood. But now he’s becoming almost as well known as the president’s biggest heckler on Twitter—and conservatives love him for it.by Asawin SuebsaengDecember 31, 2014

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.

“I don’t expect to work [in Hollywood] again.”

That was James Woods in 2013. The 67-year-old actor had worked in Hollywood for decades, starring in such acclaimed films as Once Upon a Time in America and Oliver Stone’s Salvador, playing Rudy Giuliani, voicing a shady government agent in the Grand Theft Auto video game series, and even guest-starring on The Simpsons as a Kwik-E-Mart proprietor. But now his politics were offending the progressive sensibilities of the American film industry.

“Scratch a liberal, find a fascist every time,” Woods tweeted in April. These days the Oscar-nominated actor uses his Twitter account to broadcast his right-wing views to his 190,000 followers—and he’s arguably become President Obama’s biggest, most famous troll on Twitter.

The actor does have a tendency to latch on to popular conservative memes and conspiracy theories, among them the IRS, Benghazi, and Obamacare. And at least for the time being, he’s sticking to social media as his platform for bashing liberals.

“He is not doing any interviews on this subject,” Woods’s publicist told The Daily Beast. “He prefers to express himself through Twitter and leave it at that.”

Woods’s comments can sometimes be inflammatory. He used the slur “towel-heads” after the 9/11 attacks. He has said he believes Al Sharpton is a “race pimp” and a pig. He has called Obama a “true abomination.” And that was well before this Christmas, when he appeared to joke about Obama being a Muslim.

Woods’s diehard conservatism has led some to draw parallels between his Twitter persona and his character in the 2013 movie White House Down, an extremist hawk who spends most of his time on screen hating on a liberal black president.

Woods is significantly more aggressive and prolific in his ranting than Hollywood conservatives like Jerry Bruckheimer, Bruce Willis (who isn’t much of a Republican team player, anyway), and Sylvester Stallone (who also happens to be the most anti-gun celebrity in Hollywood). Woods’s tweets alone have made him a darling in certain conservative media circles.

“James Woods has a reputation in the business of not mincing words,” Breitbart posted in September 2013. “Woods has been a prolific, highly articulate, and politically incorrect conservative voice,” The Daily Caller raved the next month. A “fierce fighter for the truth regarding the tragedy in Benghazi,” proclaimed Twitchy, the Twitter curation site founded by Michelle Malkin that regularly highlights Woods’s tweets, in May.

As for those who find his views extreme, they might very well read one of his quotes from a 2003 interview with Salon and imagine the actor commenting on his future self:

“I’ve never talked to an extreme liberal or conservative who could be disabused of his or her notions about their positions,” he said. “They are intractable in their thinking, they are unreasoning and unreasonable, and it’s just a waste of breath to talk to them.”

Ten years later, Woods would tweet: “I vowed if I were ever on Twitter, I would NEVER talk politics. That worked out pretty good…”

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.

A month ago, we wrote about actor James Woods bizarrely suing a trollish Twitter user who had been mocking Woods on the site. The whole lawsuit seemed ridiculous. The specific tweet that sent Woods over the edge was this anonymous user (who went by the name "Abe List") saying "cocaine addict James Woods still sniffing and spouting." Soon after our post on the subject, Ken "Popehat" White posted an even better takedown entitled James Woods Punches the Muppet. That post has now been updated with a brief note that White has now been retained to defend the anonymous Twitter user. And, if that gets you excited for what to expect in the legal filings, well, you don't have wait. As first reported by Eriq Gardner at the Hollywood Reporter, White has filed the John Doe's opposition to Woods' attempt to unmask the guy. And it's worth reading.

Problem number one with Woods' suit is laid out right at the beginning of the filing, which is that Woods himself has a habit of accusing others of using illegal drugs as well, just as Abe List did:

The filing shows other tweets from Woods that have similar words that Woods complained about Abe List using, such as "clown" and "scum." As the filing notes, it appears Woods thinks that he can use those insults towards others, but if anyone uses them towards him, it's somehow defamatory.

Plaintiff, an internationally known actor, is active on Twitter, a social media platform. There he is known for engaging in rough-and-tumble political debate. Plaintiff routinely employs insults like “clown” and “scum,” and even accuses others of drug use as a rhetorical trope....

But Plaintiff apparently believes that while he can say that sort of thing to others, others cannot say it to him. He has sued Mr. Doe for a derisive tweet referring to him as “cocaine addict James Woods still sniffing and spouting” in the course of political back-and forth.... He also complains, at length, that Mr. Doe has called him things like a “clown” and “scum.” Naturally, Plaintiff has himself called others “clown” or “scum” on Twitter.

The filing, quite reasonably, notes that these kinds of hyperbolic claims cannot be seen as defamatory, and since there's no legitimate claim here, there is no reason to do expedited discovery or to unmask Abe List, who is entitled to have his identity protected under the First Amendment.

Oh, and, not surprisingly, White will be filing an anti-SLAPP motion shortly, which may mean that Woods is going to have to pay for this mess that he caused.

The filing also notes that while Woods sent a subpoena to Twitter to try to seek Abe List's identity, the company turned it down as deficient. The full two page letter is in the filing below as Exhibit B, but a quick snippet on the First Amendment concerns:

First, Twitter objects because you have provided no documentation showing that the Court considered and imposed the First Amendment safeguards required before a litigant may be permitted to unmask the identity of an anonymous speaker. As courts have recognized, a trial court must strike a balance "between the well-established First Amendment right to speak anonymously, and the right of the plaintiff to protects its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the anonymous, fictitiously-named defendants." Dendrite Int'l, Inc. v. Doe No. 3,775 A.2d 756, 760 (N.J. Super. A.D. 2001). Accordingly, before a service provider such as Twitter may be compelled to unmask an anonymous speaker, (1) a reasonable attempt to notify the user of the request and the lawsuit must be made, and (2) the plaintiff must make a prima facie showing of the elements of defamation. See Krinsky v. Doe, 72 Cal. Rptr. 3d 231, 239, 244-46 (Cal. Ct. App. 2008). Moreover, under California law, the party seeking discovery must demonstrate "a compelling need for discovery" that "outweigh[s] the privacy right when these two competing interests are carefully balanced." Digital Music News LLC v. Superior court of Los Angeles, 226 Cal. App. 4th 216, 229 (2014) (citing Lantz v. Superior court, 28 Cal. App. 4th 1839, 1853-54 (1994).

It does not appear that you will be able to meet these standards. The speech at issue appears to be opinion and hyperbole rather than a statement of fact. Further, the target of the speech is a public figure who purposefully injects himself into public controversies, and there has been no showing of actual malice. Attempts to unmask anonymous online speakers in the absence of a prima facie defamation claim are improper and would chill the First Amendment rights of speakers who use Twitter's platform to express their thoughts and ideas instantly and publicly, without barriers.

Meanwhile, Woods has already filed a response in which he is still seeking to uncover the name of Abe List, and which repeats more ridiculous claims about the whole thing, starting off with the simply false claim that the original "cocaine addict" tweet was likely seen by "hundreds of thousands" of Woods' followers. That's wrong. They would only see if they followed both Woods and the Abe List account, which very few did.

The filing, somewhat hilariously, claims that calling someone "a joke," "ridiculous," "scum" and "clown-boy" are not protected by the First Amendment. Which makes me wonder what law school Woods' lawyers went to. Because that's just wrong:

AL's outrageous claim appears to be the culmination of a malicious on-line campaign by AL to discredit and damage Woods' reputation, a campaign which began as early as December 2014. In the past, AL has referred to Woods with such derogatory terms as a "joke," "ridiculous," "scum" and "clown-boy." ... Although AL's rantings against Woods began with childish name calling, it has escalated beyond the protections of free speech, i.e., the First Amendment does not permit anyone to falsely represent to the public that another person is addicted to an illegal narcotic.

Um... but Woods himself did exactly that (see above). It's standard hyperbolic speech, which is clearly not defamatory especially when mocking a public figure like Woods who has a history of using the same sort of hyperbolic insults on Twitter. Even more ridiculously, Woods' lawyers claim that by saying that the statement was a joke, that's Abe List admitting that he knew it was a false statement. I can't see that argument flying. I can see it backfiring big time once the anti-SLAPP motion is made.

So, what about those similar tweets made by Woods himself? His lawyers tell the court to ignore those piddly things.

... to the extent AL or TG attempt to argue that the Court should consider other statements on their Twitter accounts, or any previous tweets by Mr. Woods, the argument is a red herring. First, there is no reason any of Mr. Woods' followers, all of whom were exposed to the defamatory statements, would even bother to investigate the speakers and/or their Twitter sites to determine if they were reliable sources. As to Mr. Woods, we are not aware of any false statements of fact made by Mr. Woods and his sometimes sharp commentary on political matters is irrelevant to the allegations here.

Except, uh, again, Woods suggested someone smoked crack, just like Abe List joked that Woods was a cocaine addict. And, again, Woods and his lawyers are just wrong that all of Woods' followers would have seen Abe Lists' tweets. They're just factually wrong.

You never know how courts will rule in any particular case, no matter how ridiculous, but I have a hard time seeing how Woods gets out of this without having to pay two sets of lawyers -- his own and Ken White -- for filing a clearly bogus defamation case designed to shut up (and identify) an anonymous Twitter critic. No matter what, James Woods may not be a cocaine addict, but he has made it clear that he can dish it out but can't take it back when people make fun of him. What a clown.

James Woods vs. John Doe: Notice of Motion and Motion for an Order Compelling Non-Party Kenneth P. White to Answer Deposition Questions and Produce Documents; and An Order for Sanctions Against Non-Party Kenneth P. White in the amount of $9,040.55by James Woods

SUPERIOR COURT OF THE STATE OF CALIFORNIAIN AND FOR THE COUNTY OF LOS ANGELES

JAMES WOODS, an individual, Plaintiff, vs.JOHN DOE a/k/a "Abe List" and DOES 2 through 10, inclusive,Defendants.

Case No.: BC 589746

[Hon. Mel Recana, Dept. 45]

NOTICE OF MOTION AND MOTION FOR: (1) AN ORDER COMPELLING NON-PARTY KENNETH P. WHITE TO ANSWER DEPOSITION QUESTIONS AND PRODUCE DOCUMENTS; AND (2) AN ORDER FOR SANCTIONS AGAINST NON-PARTY KENNETH P. WHITE IN THE AMOUNT OF $9,040.55

PLEASE TAKE NOTICE that on December 22, 2016, at 8:35 a.m., or as soon thereafter as the matter may be heard in Department 45 of the Los Angeles Superior Court, located at 111 North Hill Street, Los Angeles, California 90012, Plaintiff James Woods ("Plaintiff") will, and hereby does, move the Court for an order compelling Non-Party Kenneth P. White ("White") to (1) provide substantive responses without objection to the questions asked during his deposition and (2) produce documents responsive to Plaintiff s deposition subpoena.

Plaintiff brings this motion to compel White's deposition testimony pursuant to California Code of Civil Procedure § 2025.480(a). Plaintiff brings this motion after White refused, during his November 14, 2016 deposition, to answer any questions related to the actual identity of his client in this action - Defendant John Doe a/k/a "Abe List" - by improperly asserting the attorney-client privilege and other unfounded objections.

Plaintiff will also move the Court for an order compelling White to produce documents that he was required to produce pursuant to Plaintiff s deposition subpoena.

Plaintiff will also move the Court for an order that White pay to Plaintiff the sum of no less than $9,040.55 as the reasonable costs and attorney fees incurred by Plaintiff in connection with bringing the instant Motion and taking White's November 14, 2016 deposition.

This Motion is made and based upon this Notice, the accompanying Memorandum of Points and Authorities, the Separate Statement, the Declaration of Michael E. Weinsten and any exhibits attached thereto, the court's file herein, and any oral argument and other documentary evidence as may be Presented at the hearing.

• I. INTRODUCTION• II. STATEMENT OF RELEVANT FACTS o A. AL's Unsuccessful Anti-SLAPP Motiono B. White's Unsubstantiated Claim That AL Died During The Appeal of the Court's Anti-SLAPP Ruling o C. White's Unfounded and Bad-Faith Refusal to Answer Basic Deposition Questions and Produce Documents Concerning the Identity of His Purportedly Deceased Client• III. LEGAL ARGUMENTo A. A Motion To Compel Is Proper Where A Deponent Refuses To Answer Questions During The Examination Or Produce Documents At Depositiono B. The Court Should Compel White To Answer Deposition Questions Relating to the Identity of AL Since This Information is Neither Private Nor Privileged And Is Critical To Woods' Ability To Effectively Prosecute His Claims Against ALo i. Because AL's Privacy Rights Died With Him, White CannotWithhold AL' s Identity On Privacy Grounds o ii. AL's Identity and Information Related To His Identity Is Not Protected By The Attorney-Client Privilege o iii. Information Related to the Identity of AL Is Highly Relevant And Critical For Woods' To Prosecute His Claims Against ALo C. White's Claim That Woods Is Not Entitled to Information Related to the Identity of AL Due to Fear of "Harassment" or "Intimidation" Is Unfounded • IV. WHITE'S FAILURE TO PROVIDE ANY JUSTIFICATION FOR HIS FAILURE TO ANSWER DEPOSITION QUESTIONS AND OR PRODUCE DOCUMENTS RESPONSIVE TO THE SUBPOENA WARRANTS AN AWARD OF MONETARY SANCTIONS AGAINST HIM • V. CONCLUSION

This case arises from the publication of a malicious and fabricated accusation leveled against actor James Woods ("Woods") by an individual who hid behind the Twitter name "Abe List" (hereafter "AL"). In July 2015, AL falsely accused Woods of being a "cocaine addict" on the widely popular social media site Twitter and, after Twitter refused to remove the libelous statement, Woods was forced to file suit for defamation and invasion of privacy by false light to protect his good name and reputation.

Rather than face Woods' claims on the merits, AL's modus operandi from the very beginning of this lawsuit has been to utilize various procedural roadblocks to conceal his identity from Woods and delay the prosecution of Woods' claims. For example, shortly after Woods filed the Complaint, AL filed a frivolous (and ultimately nnsuccessful) anti-SLAPP motion, which was clearly intended solely to prevent his identity from being disclosed. When Woods then sought to conduct discovery in connection his opposition of the anti-SLAPP motion, AL vehemently opposed the motion, claiming that Woods first had to prove his entire prima facie case against AL before discovering AL's identity.

After this Court denied AL's anti-SLAPP and rightly held that Woods had "met his burden of showing a probability of prevailing" on his claims, AL filed afrivolous appeal of this COUli's order, once again trying to block the disclosure of his identity and further delaying the prosecution of Woods' claims. Then, when it was finally time for AL to file his reply brief - after Woods had already incurred the time and expense of filing a 50-page Respondents' brief - AL's counsel, Kenneth P. White ("White"), filed a declaration with the appellate court (1) stating that his client had passed away, (2) indicating that AL's estate would be substituting into the matter, and (3) requesting an extension of time for the filing of AL's reply brief However, no substitution was ever made. Instead, weeks later, White suddenly filed a dismissal of the appeal - which resulted in this case being remanded back to the trial court.

Critically, although White claims that AL is deceased, he has refused to provide any evidence whatsoever substantiating this claim. Moreover, when Woods' counsel reasonably requested that White at least provide the identity of his now-purportedly-deceased client - a fact which would be necessary in order to confirm whether AL is actually deceased - White refused.

As a result of White's staunch refusal to provide evidence of AL's purported client's death, or even AL's name, Woods was forced to take White's deposition on November 14,2016. During this deposition, White still refused to disclose AL' s identity (or produce the relevant documents requested in the deposition subpoena), asserting the unfounded objections that such information is private, subject to the attorney-client privilege, not relevant to the claims in this lawsuit, and harassing. [1]

Obviously, White's objections are meritless and in bad faith. First and foremost, AL's right to privacy died along with him and, in any event, White cannot assert this right on his deceased client's behalf. See Lugosi v. Universal Pictures, 25 Cal.3d 813,820,833 (1979) (dissenting Justices agreeing with majority that: "It is not disputed that the right of privacy is a personal one, which is not assignable and ceases with an individual's death.") (emphasis added). Second, AL's identity and information related to his identity are not subject to the attorney-client privilege - as these are merely facts, not communications. See Hays v. Wood, 25 Cal.3d 772,785 (1979) (rejecting attorney's claim that the identity of his clients are privileged). Indeed, Woods is unaware of even a single case where the attorney-client privilege was upheld to preclude an anonymous litigant from disclosing his name. Third, there is no question that AL's identity is relevant to Woods' ability to effectively prosecute his claims, conduct discovery and obtain a judgment against a known person - even more so in light of the fact that the Court has already found Woods has a "probability of prevailing" on his claims, Indeed, if White is unwilling to substantiate his claim that AL is deceased, Woods is entitled to investigate whether this claim is true. [2] Lastly, information related to AL's identity is clearly not being requested for purposes of "harassment" or "intimidation," nor has White has offered any factual or legal support for such an absurd objection (nor does any such support exist).

In light of the above, Woods' motion should be granted and White should be compelled to answer the deposition questions set forth in the concurrently-filed Separate Statement, as well as produce documents responsive to the Subpoena.

II. STATEMENT OF RELEVANT FACTS

A. AL's Unsuccessful Anti-SLAPP Motion

On July 29, 2015, Woods filed the instant lawsuit against AL for defamation and invasion of privacy by false light.

On September 2, 2015, AL filed an anti-SLAPP motion claiming that the defamatory tweet at issue was protected by the First Amendment and that Woods could not prevail on his claims because the tweet was not a statement of fact, but, instead, mere "rhetorical hyperbole" and "insult."

On February 8, 2016, the Court denied AL's anti-SLAPP motion, finding that Woods had "met his burden of showing a probability of prevailing" on his claims for defamation and invasion of privacy.

On February 11,2016, AL filed a Notice of Appeal of the Court's February 8, 2016 order denying his anti-SLAPP.

B. White's Unsubstantiated Claim That AL Died During The Appeal of the Court's Anti-SLAPP Ruling.

On August 26, 2016, while AL's appeal was pending, Woods' counsel received an email from White stating that there had been a "development in the Woods v. Doe matter," and requesting a time to speak. Declaration of Michael E. Weinsten ("Weinsten Decl."), ~2, Ex. A. During a telephone that same day, White informed Woods' counsel that AL had purportedly died. Weinsten Decl., ~2. White, however, would not respond to any of Woods' counsel's questions regarding the identity of AL, or how or when AL allegedly died. Id White also refused to provide any actual documentary evidence that AL is deceased. Id. Shortly thereafter, on October 21,2016, AL (or AL's estate), dismissed the pending appeal.

• DOCUMENTS sufficient to IDENTIFY the personal representative of the estate of John Doe a/k/a "Abe List."

Weinsten Decl., Para. 3, Ex. B.

On November 9, 2016, White served written objections to the Subpoena. Weinsten DecL, Para. 4, Ex. C. On the same day, White also informed Woods' counsel by phone that he would not answer questions at the deposition that would disclose the identity of AL. Weinsten Decl., Para. 5, Ex. D. However, White was ambiguous as to whether he would answer other questions. Id.

On November 10, 2016, Woods' counsel sent White a meet and confer letter explaining that White's objections to the Subpoena were unfounded because the identity of his client was not subject of the attorney-client privilege or private information. Weinsten Decl., Para. 5, Ex. D. White never responded to this letter. Weinsten Dec., Para. 5.

On November 14, 2016, Woods took White's deposition pursuant to the Subpoena. Weinsten Decl., Para. 6, Ex. E. During his deposition, White refused to respond to the following questions, among others:

White's counsel objected to the above questions on the grounds that they purportedly seek information that is (1) protected by the attorney-client privilege, (2) "not reasonably calculated to lead to admissible evidence," and (3) designed to "harass, intimidate third parties and/or deceased people ... " Weinsten Decl., Para. 6, Ex. E at 7:8-22. White also failed and refused to bring any of the documents requested in the Subpoena to the deposition. Weinsten Decl., Para. 6.

Efforts to further meet and confer continued throughout White's deposition, wherein Woods' counsel sought legal authority in support of White's objections, but was provided none. See, e.g., Weinsten Decl., Para. 6, Ex. E at 7:23-8:4.

III. LEGAL ARGUMENT

A. A Motion To Compel Is Proper Where A Deponent Refuses To Answer Questions During The Examination Or Produce Documents At Deposition

"Any party may obtain discovery ... by taking in California the oral deposition of any person, including any party to the action." Cal. Civ. Proc. Code § 2025.010. "It is established that a litigant has the right to take a proper deposition, and to receive responsive answers to proper questions ... for the purposes of discovery or for use as evidence, or for both purposes." Beverly Hills Nat. Bank & Trust Co. v. Superior Court In and For Los Angeles County, 195 Ca!. App. 2d 861, 864-865 (1961) (citations omitted). Indeed, "a deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party, or to the claim or defense of any other party." Kramer v. Superior Court of Los Angeles County, 237 Cal. App. 2d 753, 756 (1965); see also CCP Section 2017.010 (providing that "any party may obtain discovery ... that is relevant ... , if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.") "The statute authorizing the taking of depositions ... should be liberally construed to the end that a litigant in a pending action may be afforded a reasonable opportunity to procure available testimony in support of his cause." Mora v. Superior Court in and for Sacramento County, 38 Cal. App. 2d 328, 334 (1940).

"If a deponent fails to answer any question or to produce any document ... under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production." CCP § 2025.480(a). "If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition." CCP § 2025.480(e).

As set forth below and in Woods' Separate Statement filed herewith, White's objections to Woods' deposition questions and White's objections to Woods' document requests are without merit and the answers and production sought are relevant to the issues in this litigation. As such, Woods submits that Mr. White should be compelled to provide answers to the deposition questions set forth herein and produce responsive documents to the Subpoena.

B. The Court Should Compel White To Answer Deposition Questions Relating to the Identity of AL Since This Information is Neither Private Nor Privileged And Is Critical To Woods' Ability To Effectively Prosecute His Claims Against AL.

Mr. White has refused to produce responsive documents and answer critical questions at his deposition relating to the identity of his purportedly-deceased client on the grounds that such information is somehow (1) protected by the right to privacy, (2) protected by the attorney-client privilege, (3) "not reasonably calculated to lead to admissible evidence," and (4) intended to "harass, intimidate third parties and/or deceased people ... " For the reasons set forth herein, White's objections are meritless and his testimony, as well as the production of responsive documents, should be compelled.

White has refused to produce documents responsive to the Subpoena on the baseless ground that the documents are "protected by the right to privacy and anonymity." Weinsten Decl., Para. 4, Ex. C at 2:13- 14, 24-25. First, assuming AL is actually deceased (which is not conceded), he no longer has any right to privacy. More specifically, it is well settled that the right of privacy does not survive but dies with the person. See Lugosi v. Universal Pictures, 25 Cal.3d 813, 820, 833 (1979) (dissenting Justices agreeing with majority that: "It is not disputed that the right of privacy is a personal one, which is not assignable and ceases with an individual's death.") (emphasis added); Hendrickson v. California Newspapers, Inc., 48 Cal.App.3d 59, 62 (1975). Further, "the right to privacy is purely a personal one; it cannot be asserted by anyone other than the person whose privacy has been invaded .... " Hendrickson, 48 CaLApp.3d at 62; Flynn v. Higham, 149 CaLApp.3d 677 (1983) (children of deceased actor Errol Flynn cannot sue author of biography of Flynn for defamation or invasion of privacy because the right of privacy cannot be asserted by anyone other than the person whose privacy has been invaded). Thus, White cannot assert such a right on AL's behalf.

Second, AL does not have (and never had) the right to proceed anonymously in this lawsuit. Under California law, a litigant who has voluntarily appeared and submitted to the jurisdiction of the court has a very high burden to satisfy in order to remain anonymous. A general "presumption exists that cases will be litigated with the true identities of the parties set forth on the record, and a court may not lightly disregard that presumption." AF Holdings LLC v. Doe, No. 2:l2-CV-1066 GEB GGH, 2012 WL 6042635, at *2 (E.D. Cal. 2012) (emphasis added) (denying defendant's right to litigate anonymously.) This presumption is based on, among other things, the public interest in an open court system, including the public's right to know the identity of parties to a lawsuit. See Doe v. Kamehameha Schools etc., 596 F.3d 1036, 1042-43 (9th Cir. 2010) ("We are sympathetic to the concerns of the Doe children and their parents, but we recognize the paramount importance of open courts.") California courts only allow parties to use pseudonyms in the "unusual case" when nondisclosure of the party's identity "is necessary ... to protect a person from harassment, injury, ridicule or personal embarrassment." United States v. Doe, 655 F.2d 920, 922 (9th Cir. 1980) ("We recognize that the identity of the parties in any action, civil or criminal, should not be concealed except in an unusual case, where there is a need for the cloak of anonymity."). Here, AL has never established (and neither has White) the extraordinary circumstances required for a litigant to remain anonymous. [3]

In light of the above, White cannot refuse to answer questions of produce documents that relate to the identity of AL on privacy grounds.

ii. AL's Identity and Information Related To His Identity Is Not Protected By The Attorney-Client Privilege

Contrary to White's claims, AL's identity and information related to his identity is not subject to the attorney-client privilege. See Hays, 25 Ca1.3d at p. 785 ("It is well established that the attorney-client privilege, designed to protect communications between them, does not ordinarily protect the client's identity."); Tien v. Superior Court, 139 Cal.App.4th 528, 537 (2006) (same); Brunner v. Superior Court of Orange Cty., 51 Cal.2d 616,618 (1959) ("[I]t is the general rnle that an attorney is not privileged to withhold disclosing by whom he has been employed."). To the contrary, California courts have acknowledged that once litigation is commenced, a litigant should not be required "to struggle in the dark against unknown forces," even if this means disclosing the name of a client who wishes to remain anonymous. See Baird v. Koerner, 279 F.2d 623, 630 (9th Cir. 1960) ("There is no question ... that it is at times vital to the administration of justice to require disclosure of a client's name.")

The attorney-client privilege is "a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer." See Evid. Code, § 954 (emphasis added). '" [C]onfidential communication between client and lawyer' means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which ... discloses the information to no third persons other than those who are present to further the interest of the client in the consultation ... and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship." Evid.Code, § 952 (emphasis added).

Here, AL's legal name does not fit within the purview of Evid. Code, § 954, as it is not a "communication" made in confidence. There is no question that someone's legal name is not "confidential"-it is known by many people outside the scope of any attorney-client privilege communications. Moreover, disclosing the identity of AL, or information related to his identity, would not disclose the contents of any legal advice obtained by AL (or AL's estate). Woods is not asking for any communications that AL had with White regarding his identity. Indeed, Woods is not aware of a single case where a court has allowed an attorney of a deceased client who is a party to a lawsuit to withhold the identity of his client on privilege grounds.

Furthermore, the extremely limited exceptions to the general rule that client identities are not privileged are inapplicable here. First, there is no reason to believe that disclosing the identity of AL (or his estate's personal representative) might implicate AL in unlawful activities or expose him to criminal or civil liability. See Tien, 139 Cal.App.4th at 537; Hays, 25 Cal.3d at 785. Considering that AL has already been sued by Woods, there is no risk in exposing him to any "civil liability" beyond what he is already facing. Moreover, there is no risk of exposing AL to criminal liability since Woods' allegations are not criminal in nature. Thus, this exception does not apply.

Second, this is not a situation where "known facts regarding an attorney's representation are sue that the disclosure of the client's identity would betray personal, confidential information regarding the client." Tien, 139 Cal.App.4th at 537-538 (holding trial court's discovery order compelling disclosure of the names of class members who contacted plaintiffs' counsel did not violate attorney-client privilege because disclosing the names would not "disclose any personal, confidential information.") The identity of AL or information related to the identity of AL does not constitute "personal, confidential information" because, as stated above, AL's name is not confidential-it is known by virtually everyone that has met AL; not solely his attorneys. Moreover, the disclosure of this information would not "betray a confidential communication" because someone's legal name is not a "confidential communication" - it is a/act, plain and simple. See Tien, 139 Cal.App.4th at 538; cf. Rosso, Johnson, Rosso & Ebersold v. Superior Court, 191 Cal.App.3d 1514, 1518 (1987) (refusing to order disclosure of identities of women who responded to newspaper advertisement directed to women who have suffered injury from use of an intrauterine device because "revealing their names would reveal the nature of a 3 medical problem, ordinarily considered a confidential communication").

iii. Information Related to the Identity of AL Is Highly Relevant And Critical for Woods' To Prosecute His Claims Against AL

Woods is entitled to discover the identity of AL. It is indisputable that AL' s identity is critical and relevant to Woods' ability to investigate and gather information to prosecute his claims against AL. Indeed, California courts have recognized that "[n]otwithstanding the constitutional right to anonymity ... a libel plaintiff has a legitimate competing interest in discovering an anonymous speaker's identity in order to effectively prosecute the libel claim." Doe 2, 206 Cal. App. 5th at p. 1311. Moreover, because White has refused to provide any evidence substantiating his claim that AL is deceased, Woods requires AL's name in order to conduct his own investigation into the issue. Lastly, Woods cannot obtain (or collect) a judgment against a "John Doe." Thus, he needs AL's identity to obtain a collectable judgment against him.

C. White's Claim That Woods Is Not Entitled to Information Related to the Identity of AL Due to Fear of "Harassment" or "Intimidation" Is Unfounded

Lastly, White has refused to provide the identity of AL based on the baseless claim that this information is sought to "harass, intimidate [unnamed] third parties and/or deceased people ... " Weinsten Decl., Para. 6, Ex. E at 7: 13-1 S. This is ridiculous. First of all, if AL is in fact deceased (as White contends), he cannot as a matter of fact (and common sense) be "harassed" or "intimidated." Moreover, White does not indicate who the "third parties" are that would purportedly be "harassed" or "intimidated" should the identity of AL be disclosed. Instead, White's objections are baseless and designed to further obstruct Woods' ability to prosecute his claims. White provides zero evidence that Woods intends to use this information for any other purpose than to prosecute his claims in this lawsuit. As such, White should be compelled to respond to the deposition questions and produce responsive documents.

IV. WHITE'S FAILURE TO PROVIDE ANY JUSTIFICATION FOR HIS FAILURE TO ANSWER DEPOSITION QUESTIONS AND OR PRODUCE DOCUMENTS RESPONSIVE TO THE SUBPOENA WARRANTS AN AWARD OF MONETARY SANCTIONS AGAINST HIM

Pursuant to Code of Civil Procedure section 2025.480G), where a court concludes that a deponent improperly refused to answer deposition questions, the court must impose monetary sanctions unless the court finds that the losing party "acted with substantial justification" or that there are other circumstances that make the imposition of sanctions improper. California courts may also impose a monetary sanction against a deponent engaging in the misuse of the discovery process by failing to respond to a subpoena. See Cal. Code ofCiv. Pro. § 2023.030(a) ("The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process ... pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of Vthat conduct. "). A nonparty opposing a motion to compel compliance with a subpoena without substantial justification is also subject to sanctions. See Cal. Code of Civ. Pro. §§ 1987.2(a) ("the court may in its discretion award the amount of the reasonable expenses incurred in making ... the motion, including reasonable attorney's fees, if the court finds the motion was ... opposed in bad faith or without substantial justification."); 2020.030; 2025.480; 2023.01O(d); see also Pers. v. Farmers Ins. Grp. a/Companies, 52 Cal. App. 4th 813, 818 (The Code "authorizes service of a deposition subpoena for the production of documents on a nonparty witness and ... authorize[ s] punishment for 'refusal ... to produce' documents requested in the subpoena.") (emphasis added)

Here, White's refusal to answer Woods' deposition questions was without substantial justification and constituted a misuse of the discovery process pursuant to CCP §§ 2023.010(d) and (e). As such, monetary sanctions are warranted to compensate Woods for the reasonable costs and fees associated with the motion and deposition.

As set forth in the accompanying declaration, the total fees and costs that Woods will incur in connection with this motion are no less than $9,040.55. Weinsten Decl., Paras. 7-9.

V. CONCLUSION

For the reasons stated herein and in Woods' Separate Statement filed concurrently herewith, White has unjustifiably refused to answer relevant questions during his deposition and produce the relevant documents specified in the Subpoena. As such, Woods respectfully requests that the Court issue an Order directing White to appear and answer the questions set forth in Woods' Separate Statement and to produce all documents specified in the Subpoena at 10:00 a.m. on January 5, 2017. Woods also respectfully requests that the Court award monetary sanctions against White and in favor of Woods in the sum of $9,040.55.

1. I am an attorney at law duly qualified to practice before the Courts of the State of California. I am a member of Lavely & Singer Professional Corporation, attorneys of record for Plaintiff JAMES WOODS ("Woods") in this action. The facts stated herein are true and correct and of my own personal knowledge, and if called and sworn as a witness, I could and would testifY competently thereto under oath.

2. Attached hereto as Exhibit "A" is a true and correct copy of an August 26, 2016 email that I received from Kenneth White ("White"), counsel for Defendant JOHN DOE alk/a "Abe List" ("AL") in this action. That same day, during a telephone call with my associate Lindsay Molnar, White claimed that AL had died. However, White would not respond to any of Mrs. Molnar's questions regarding the identity of AL, or how or when AL allegedly died. White also refused to provide any actual documentary evidence that AL was deceased.

3. On November 3, 2016, my firm issued and served a Deposition Subpoena for Personal Appearance and Production of Documents and Things (the "Subpoena") on White. A true and correct copy of the Subpoena is attached hereto as Exhibit "B."

4. On November 9, 2016, White served written objections to the Subpoena, a true and correct copy of which is attached hereto as Exhibit "C."

5. Attached hereto as Exhibit "D" is a true and correct copy of a November 10, 2016 letter sent by Ms. Molnar to White. White never responded to this letter.

6. On November 14, 2016, Mrs. Molnar took White's deposition pursuant to the Subpoena. White failed and refused to bring any of the documents requested in the Subpoena to the deposition. A true and correct copy of relevant excerpts from the certified transcript of White's deposition is attached hereto as Exhibit "E."

7. Woods has incurred and will incur reasonable costs and attorney fees in connection with Whites deposition and the bringing of this Motion in the amount of $9,040.55, consisting of the following:

(a) Motion filing fee - $60.00

(b) Process server fee - $70.00

(c) Deposition court reporter and transcript fee -- $598,05

(d) Attorney fees - $8,312.50

At the hourly billing rate of $375.00, Mrs. Molnar has spent nine (9) hours meeting and conferring with White, taking White's deposition, and drafting this motion, for a total of $3,375.00 in attorney fees. Additionally, at the hourly billing rate of $400.00, my associate David B. Jonelis has spent five (5) hours drafting and revising this motion, for, a total of $2,000.00 in attorney fees. Additionally, at the hourly billing rate of $625.00, I spent one and a half (1.5) hours reviewing and revising this motion, for a total of $937.50 in attorney fees.9. Based upon my experience, I anticipate that Mr. Jonelis will spend an additional five (5) hours preparing the reply to this motion and attending the hearing on this motion, for a total of $2,000.00 in attorney fees.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

There's been a development in the Woods v. Doe matter that I'd like to bring to your attention. I hope that it will permit a resolution. I know you have a brief due soon and I'll stipulate to extending the time to file it while I brief you on it. Please let me know when you are available to talk.

1. The term "DOCUMENT" or "DOCUMENTS" as used herein shall mean and refer t all writings (whether electronic or hard copy) as defined by California Evidence Code section 250 and further includes any and all originals as defined by California Evidence Code section 255 and an and all duplicates as defined by California Evidence Code section 260, as well as all drafts prepare at any time in connection with such DOCUMENTS, within YOUR possession, custody and/or control and/or YOUR agents, attorney, accountants and/or any other PERSON who may act on his behalf excepting only those DOCUMENTS which are privileged or otherwise protected from discovery.

3. "IDENTIFY," as it relates to a Person, shall mean to state the Person's full name, last known address, last known telephone number, last known company for whom that Person worked and the Person's position with that company. As it relates to a Document, "IDENTIFY" shall me to state the type and title of the Document, its subject matter and bates number, and who ha possession, custody or control of it.

4. The terms "COMMUNICATION" and "COMMUNICATIONS" as used herein shall mean and include every manner or means of disclosure, transfer, communication, or exchange of data and/or information, whether orally, electronically, by DOCUMENT, or in any other manner or whether face to face or by telephone, mail, facsimile, electronic mail, text message, internet posting personal delivery, or otherwise.

PLEASE TAKE NOTICE that non-party Kenneth P. White hereby objects to the Deposition Subpoena for Personal Appearance and Production of Documents and Things, served by Plaintiff James Woods as follows:

OBJECTION TO DEPOSITION NOTICE

Non-party Kenneth P. White objects to the notice of deposition on the grounds that it represents an attempt to depose him on subjects protected by the attorney-client privilege, and is not reasonably calculated to lead to discoverable evidence for use in the case. Its purpose is to harass Mr. White, the late Mr. Doe's family, and to attack the late Mr. Doe's name.

Non-party Kenneth P. White responds as follows: Non-party objects that the request seeks documents protected by the right to privacy and anonymity. Non-party objects that the request is not reasonably calculated to lead to discoverable evidence. for use in the case. Rather, the purpose is to harass Mr. White, the late Mr. Doe's family, and to attack the late Mr. Doe's name.· Non-party objects that the request seeks information covered by the attorney-client privilege. Without waiving the first two objections, Non party rests on the latter objection and will not produce documents.

REQUEST FOR PRODUCTION No. 2.:

DOCUMENTS sufficient to IDENTIFY the personal representative of the estate of John Doe a/k/a "Abe List."

OBJECTION TO REQUEST FOR PRODUCTION No. 1.:

Non-party Kenneth P. White responds as follows: Non-party objects that the request seeks documents protected by the right to privacy and anonymity. Non-party objects that the request is not reasonably calculated to lead to discoverable evidence. Rather the purpose is to harass Mr. White, the late Mr. Doe's family, and to attack the late Mr. Doe's name. Non-party objects that the request seeks information covered by the attorney-client privilege. Without waiving the first two objections, Non party rests on the latter objection and will not produce documents.

I am employed in the County of Los Angeles, State of California. I am over the age of eighteen years and not a party to the within action. My business address is 333 South Hope Street, 40th Floor, Los Angeles, California 90071.

On November 9, 2016, I served the following document(s) described as: NONPARTY KENNETH P. WHITE'S OBJECTION TO DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS in this action by placing true copies thereof enclosed in sealed envelopes and/or packages addressed as follows:

BY ELECTRONIC MAIL: On the above-mentioned date, from Los Angeles, California, I caused each such document to be transmitted electronically to the party(ies) at the e-mail addressees) indicated below. To the best of my knowledge, the transmission was reported as complete, and no error was reported that the electronic transmission was not completed.

STATE: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.